Arthur Obafemi Cecil Decker, R (On the Application Of) v Secretary of State for the Home Department & Anor

I have before me three judicial review applications each brought by the Claimant, a national of Sierra Leone, who seeks to challenge his enforced removal to that country pursuant to a Deportation Order. The Claimant is currently detained pending deportation.

The first and third judicial reviews are brought against the Secretary of State for the Home Department. I shall refer to the Secretary of State as the “Defendant” in this judgment. The first judicial review challenges the validity of the Deportation Order signed by the Defendant on 27 January 2009, and the detention of the Claimant on 24 April 2012 with a view to enforcing that Deportation Order. The third judicial review challenges the Defendant’s refusal to revoke the Deportation Order contained in a letter dated 20 August 2012, as well as the certification of the Claimant’s human rights claim as clearly unfounded, and the refusal to grant an in-country right of appeal.

The second judicial review is brought against the Upper Tribunal (Asylum and Immigration Chamber), which refused permission on 9 May 2012 to appeal against the decision of First Tier Tribunal Judge Devittie promulgated on 27 March 2012 (the “FTT”). The Upper Tribunal was not represented before me and played no part in this judicial review, although the Defendant, named as an Interested Party in the second judicial review, made submissions.

The Claimant was represented by Mr Zainul Jafferji and the Defendant was represented by Ms Susan Chan. I am grateful to both for their written and oral submissions, and for their efficient presentation which meant that this case was heard in one day.

This case has a long history. The following facts are taken substantially from the Defendant’s Detailed Grounds of Defence. I do not understand them to be in dispute.

On 19 May 2000, the Claimant who was born on 31 December 1984 arrived in the UK with his sister Winifred. They were granted leave to enter for 6 months as visitors. On 7 August 2001, Winifred claimed asylum and asked for the Claimant to be treated as her dependent. On 9 October 2001, Winifred’s asylum application was refused. The Claimant was served with notice of his liability to removal as an overstayer. On 22 October 2001 the Claimant lodged an appeal against the refusal decision. On 12 March 2003, the Claimant’s appeal was dismissed.

In July 2003, the Claimant applied for discretionary leave. His application was supported by documents, which it later transpired were forgeries, stating that he had a life threatening medical condition. On 22 October 2003 the Claimant was granted discretionary leave to remain for 6 months on the basis of the information contained in the documents he had submitted. In November 2004, the Claimant started to live with his other sister Jennifer, who is a British citizen. On 29 March 2005, the Claimant was charged with two counts under the Forgery and Counterfeiting Act 1981 in relation to the forged documents, one count of obtaining leave to remain in the UK by deception and one count of facilitating a breach of immigration laws by a non-EU national. On 5 August 2005, the Claimant was convicted of two offences of seeking to obtain leave by deception at Croydon Crown Court and was sentenced to 15 months imprisonment.

On 17 March 2008, the Claimant was notified of the Defendant’s decision to make a deportation order against him. On 24 July 2008, the Claimant appealed against the notified intention to make a deportation order. On 21 August 2008 the Claimant applied for a residence card as the spouse of a French national. His application was refused as it turned out, by reference to documents held by the Defendant, that his spouse was already married. On 4January 2009, the Claimant left the UK to live with his sister Jennifer in Ireland. The Claimant did not notify the Defendant that he had departed. On 8 January 2009, the Claimant withdrew his appeal against the decision dated 17 March 2008 to make a deportation order against him.

On 27 January 2009, the Defendant signed a deportation order in respect of the Claimant (“the Deportation Order”). As the Claimant had not presented himself for immigration reporting, the Deportation Order was served to file in accordance with Regulation 7(2) of Immigration (Notices) Regulations 2003.

In September 2009, the Irish authorities granted the Claimant an EEA residence card as an extended family member of his sister Jennifer, who was exercising her EEA right of free movement in Ireland. In October 2009, the Claimant arrived back in the UK (it is not known how he came back in; the Defendant has no record of his re-entry). On 28 October 2009, the Claimant made an application for an EEA Residence card on the basis that he was dependent upon his sister Jennifer. On 6 January 2010, the Claimant’s application for an EEA Residence card was refused by the Defendant. On 9 September 2010, Mr Justice Collins granted permission to seek Judicial Review of the Defendant’s decision to refuse to grant an EEA residence card to the Claimant. On 14 December 2010, the Defendant agreed to reconsider the Claimant’s application for an EEA Residence Card and the judicial review proceedings were settled by consent.

On 4 March 2011 the Defendant refused the Claimant’s application for an EEA residence card, on reconsidering it. On 18 July 2011, in light of fresh evidence which had been provided by the Claimant and with the agreement of both parties, Immigration Judge Rowlands, sitting in the First Tier Tribunal, allowed an appeal against the Defendant’s decision of 4 March 2011 to the extent that it was remitted to the Defendant for further reconsideration. On 8 August 2011, the Defendant refused the Claimant’s application for an EEA residence card on further consideration of it. On 11 January 2012, a supplementary reasons for refusal letter, to correct administrative errors and clarify certain issues in the letter of 8 August 2011, was sent to the Claimant.

On 27 March 2012, the Claimant’s appeal against the refusal to grant him an EEA residence card was refused by the FTT. On 17 April 2012, the Claimant’s application to the First-tier Tribunal for permission to appeal was refused. On 24 April 2012, the Claimant was detained pending removal. On 25 April 2012, the Claimant was served with removal directions for 2 May 2012. On 27 April 2012, the Claimant applied to the Upper Tribunal for permission to appeal.

On 30 April 2012, the first judicial review claim form was issued (ref CO/4484/2012), the “First JR”. This challenged the validity of the Deportation Order and the decision to detain the Claimant. The Claimant also applied for interim relief, namely an order requiring the Defendant to release him. On 30 April 2012, Mr Justice Sales refused to order that the Claimant be released on the basis of his immigration and offending history, including the risk of his absconding to avoid removal. The removal directions were subsequently vacated.

On 9 May 2012, the Upper Tribunal refused permission to appeal. On 8 June 2012, HHJ Mackie QC (sitting as a deputy High Court Judge) refused permission in the First JR on the papers.

On 19 June 2012, the second judicial review claim form was issued (ref CO/6383/2012), the “Second JR”. This challenged the Upper Tribunal’s decision to refuse permission to appeal on grounds of EU law and on the basis of an assertion of two unfair and unsafe findings of fact by the FTT. On 20 June 2012, Mr C M Ockelton (sitting as a deputy High Court Judge) granted permission to the Claimant to amend his grounds in the first JR and ordered the Defendant not to remove the Claimant until determination of the application for permission in the first JR, joining the first and second JRs. On 20 August 2012 the Defendant, having treated the Second JR as an application to revoke the Deportation Order, refused to revoke it. On 20 August 2012, Timothy Straker QC (sitting as a deputy High Court Judge) refused permission in the Second JR on the papers. He ordered that if a renewal notice was served, the oral hearing should be heard at the same time as the renewal application in the First JR. On 6 September 2012, Robin Purchas QC (sitting as a deputy High Court Judge) heard the applications for permission in the First and Second JRs and granted permission on one ground only (ie the issue of unlawful detention raised in the First JR).

On 17 September 2012, the Claimant filed an application for permission to appeal to the Court of Appeal against the order of Robin Purchas QC refusing permission in the Second JR. On 19 October 2012, the Claimant filed an application for permission to appeal to the Court of Appeal against the order of Robin Purchas QC refusing permission on the other ground in the First JR (validity of Deportation Order).

On 8 November 2012, the Defendant made an application to discharge the injunction granted by Mr C M Ockelton on 20 June 2012 which prevented removal of the Claimant until determination of his application for permission.

On 20 November 2012, the Claimant issued the third judicial review proceedings CO/12553/2012, the “Third JR”, challenging the refusal of his application to revoke the deportation order and the certification of his human rights claim by the Defendant on 20 August 2012, and the refusal of an in-country right of appeal.

On 11 December 2012, John Bowers QC (sitting as a deputy High Court Judge) directed that the Defendant’s application of 8 November 2012 to discharge the injunction should be listed for a 30 minute hearing.

On 12 March 2013, the Court of Appeal (Sir Richard Buxton, considering the matter on the papers) granted permission on the first ground in the First JR (the validity of the Deportation Order) and the first ground in the Second JR (the EU law ground).

In April 2013 (precise date not clear to me), HHJ Gosnell sitting as a deputy High Court Judge refused permission to apply for judicial review in the Third JR, declaring those grounds to be totally without merit. The Claimant applied to renew that application orally on 17 April 2013.

On 29 April 2013, by a consent order the parties agreed that the three judicial review claims should be consolidated and that by 28 days after the expected oral permission hearing before the Court of Appeal, the grounds should be consolidated into one document.

On 19 June 2013, the Claimant renewed his application for permission orally on the second ground in the Second JR (unfair and unsafe findings of fact by the FTT). McCombe LJ remitted that ground to the Administrative Court for reconsideration at the full hearing.

On 22 July 2013 the Claimant lodged consolidated grounds for judicial review. Those consolidated grounds were addressed in each party’s skeleton, and formed the basis of argument at the hearing. They provide the structure for this Judgement. Wider or different arguments which might have been advanced at earlier stages of this litigation, but which did not appear in the consolidated grounds, were not addressed.

The consolidated grounds list the following numbered issues. Beside each I have recorded the position on permission.

I indicated at the outset of the hearing on 29 January 2014 that I intended to deal with grounds 4, 5, 6 and 7 on the basis that this was a “rolled up” permission hearing. I therefore heard full argument on all grounds. I shall address each of the Claimant’s grounds in the order set out above, dealing with the issue of permission where necessary.

Two procedural points must be noted:

Section 3 of the Immigration Act 1971 sets out those who are liable to be deported from the UK:

“(5)

A person who is not a British citizen is liable to deportation from the United Kingdom if—

(a)

the Secretary of State deems his deportation to be conducive to the public good; or

(b)

another person to whose family he belongs is or has been ordered to be deported.

(6)

Without prejudice to the operation of subsection (5) above, a person who is not a British citizen shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so.”

The power to deport such a person exists at s 5 of the 1971 Act:

“Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force.”

The Claimant’s argument is that a deportation order can only be made against someone who is in the United Kingdom; only such a person can be required to leave and prohibited from re-entering the United Kingdom; and because the Claimant was not in fact in the United Kingdom on 27 January 2009 when the Deportation Order was signed, it is invalid.

The Claimant draws support from an extract from MacDonald’s Immigration Law and Practice, para 15.65 of which states that:

“Persons liable to deportation who are not detained may leave the UK voluntarily … at any time before a deportation order is signed. The advantage of this option is that it does not preclude a future return under the Immigration Rules, since the power to sign a deportation order can only be exercised when the person is in the UK. …”

The Claimant relies also relies on the Immigration Rules which, at paragraph 362 define deportation as:

“A deportation order requires the subject to leave the United Kingdom and authorises his detention until he is removed. It also prohibits him from re-entering the country for as long as it is in force and invalidates any leave to enter or remain in the United Kingdom given him before the Order is made or while it is in force.”

The Claimant emphasises that this rule, and indeed other parts of the Immigration Rules, are predicated on deportation involving removal of a person from the United Kingdom.

Relying on the requirement contained in para 1(3) of Schedule 2 to the 1971 Act, that immigration officers must act in accordance with the Defendant’s instructions from time to time, the Claimant cites Chapter 15 (Footnote: ¹) of the Enforcement Instructions and Guidance, which provides amongst other things:

“15.6

Invalid Orders

An order is invalid if:

•

the person was not in the UK on the date the order was signed;

•

the order was improperly made;

•

the person has become entitled to the right of abode.”

To similar effect, paragraph 10.1 of Chapter 13, section 1 of the IDI states:

“A deportation order cannot be made against a person who is not in the United Kingdom and therefore enforcement action will cease if it is known a person has disembarked.”

The Claimant adds that even if the deportation order is not invalid as a matter of law, it should nonetheless have been treated as invalid by the Defendant’s immigration officers in line with the instructions set out above which represent the Defendant’s policy in this area.

Further, the Claimant says that if the Defendant’s analysis is correct, there is no point in the provisions for voluntary departure because the Defendant can nonetheless make a deportation order against someone who has voluntarily departed, and thereby impose on them the consequences of deportation which were precisely what that person sought to avoid by voluntary departure.

The answer to the Claimant’s arguments, the Defendant contends, is that a deportation order will only be made where the Defendant has reason to believe that the person liable to deportation is indeed in the UK. If the Defendant believed such a person was outside the UK, then consideration would be given to making an exclusion order in place of a deportation order for obvious reasons. The purpose of the legislation providing for deportation and exclusion orders is to enable the Defendant to remove (if they are in the UK) or keep out (if they are outside the UK) individuals who, within the parameters set by statute, are considered to be undesirable. If a person has voluntarily departed, to the Defendant’s knowledge, there is no reason to make a deportation order and an exclusion order will instead fall for consideration.

The facts of this case are all important, the Defendant argues: the Claimant was notified of the intention to make a deportation order against him on 17 March 2008. He appealed against that decision on 24 July 2008. He moved to Ireland on 4 January 2009 (at one point this was disputed by the Defendant, but no longer), but there is no record of his having left and he did not inform the UKBA that he was intending to leave or had left; he “slipped out”. He withdrew his appeal on 8 January 2009. Accordingly, from 8 January 2009, as far as the Defendant was aware, he remained in the UK and remained liable to deportation, but no longer had any extant appeal against the decision to deport. It was in these circumstances that a deportation order was signed on 27 January 2009.

The First Tier Tribunal found as a fact that the Claimant had moved to Ireland with his sister for the immediate purpose of avoiding the deportation proceedings which had been instituted against him and for the secondary purpose of enabling him to return to the United Kingdom in due course as the extended family member of a UK national who had exercised Treaty rights in Ireland: para 18. The First Tier Tribunal went on to conclude that:

“21.

It would undermine the maintenance of effective immigration control, one of the central purposes of the immigration rules, if the temporary absence of a foreign criminal from the United Kingdom for the express purpose of avoiding deportation, would invalidate a deportation order duly signed, on the grounds that it could not and was not served on him because of an absence from the United Kingdom that he had contrived. ….”

In my judgment, the Defendant’s arguments, and the First Tier Tribunal’s decision on this point, are plainly right.

The statute does not contain any express requirement that the person must be present in the UK at the time the deportation order is signed. The Claimant’s arguments must therefore depend on reading that condition into the statute in some way.

To read in such a condition would go against the grain of the statute: the statute provides that the deportation order is the means both of removing a person from the UK and of prohibiting that person from entering the UK (s 5(1)). This double effect would tend to suggest that a deportation order is, and was intended to be, valid and effective whether the person is in the UK or outside the UK: s 5(1) envisages either possibility.

Further, to read in such a condition would undermine the policy underlying the statute, which is to maintain effective immigration control by enabling the Defendant to remove foreign criminals and others whose presence in the UK is not conducive to the public good. Yet the Claimant’s argument results in a surprisingly broad gap in that system of immigration control. On the Claimant’s argument, if a deportation order is made on a day when the subject of the order is not in the UK, for whatever reason, the order is automatically invalidated. That is so regardless of the reason for that person’s absence from the UK. That person could have gone to Calais for the day; their departure may have been clandestine; they may have departed for the express purpose of avoiding deportation (as here).

That, it seems to me, is to arrive at a result which makes no sense. It would be possible for any person who knows that a decision to deport has been made (that decision being the precursor to the making of a deportation order, and that being the decision which triggers the in-country right of appeal) to evade the deportation order by leaving the country for a period. If, as here, that person manages to slip back into the UK unnoticed (bearing in mind that the effect of the deportation order is, pursuant to s 5(1), to prohibit re-entry), then that person can, on the Claimant’s argument, defeat the deportation order which is outstanding against him on grounds that it is invalid. The Secretary of State would then be faced with having to sign a second deportation order, which could potentially set off the whole process again if the Claimant repeated his earlier conduct in leaving the country in anticipation of that occurring. I do not accept that can be a correct application of the statute.

The Claimant is not assisted by the passages from the Immigration Rules and other internal instructions on which he relies. Those rules and instructions are intended to give detailed guidance to immigration officials, to ensure that the appropriate immigration decision is made (specifically, deportation if the person is or is believed to be in the UK, exclusion if the person is not or is not believed to be in the UK). They are not intended to limit the validity of a deportation order in ways not envisaged by the statute, and nor do they have that effect.

The Claimant argues that the Defendant’s position undermines the policy incentive for voluntary departure, because a deportation order can be made against someone even though that person is willing to depart or has departed voluntarily. But that argument does not fit the facts of this case. This Claimant left the UK “voluntarily” in January 2009 in order to avoid deportation, which he knew was coming, and to promote his prospects of getting a UK residency card through his sister’s residency in Ireland. He has never volunteered to go back to Sierra Leone. The many appeals and judicial reviews he has brought bear testament to his dogged campaign to stay in the UK. This is not a case where the Claimant suggests that but for his detention with a view to deportation he would leave voluntarily. Voluntary departure is not in point.

The Claimant relied on R v SSHD ex p William Kwaku Duah Brew [1988] Imm AR 93 to reinforce his argument that the effect of a deportation order is to remove the person’s right to leave voluntarily. I accept that may be the effect of deportation. But in Brew, just as in this case, there was in fact no realistic prospect that the immigrant would leave voluntarily. Deportation was therefore justified. Brew does not help the Claimant.

I conclude that the Deportation Order was not invalid simply because the Claimant was outside the UK on the day it was signed.

Ground 1 fails.

The Claimant’s appeal before the FTT was heard on 7 March 2012 and the FTT’s determination was promulgated on 27 March 2012. The Claimant applied to the FTT for permission to appeal, which application was refused on 17 April 2012. The Claimant was detained on 24 April 2012, and removal directions were set for 2 May 2012. The Claimant challenges his detention on 24 April 2012 and thereafter.

At the time the Claimant was detained, there was no application for appeal to the Upper Tribunal pending. In fact, such an application was submitted on 27 April 2012. That application was in the event refused on 9 May 2012, but in the meanwhile, the Claimant issued the First JR on 30 April 2012. The removal directions for 2 May 2012 were cancelled.

The Claimant contends that his detention was unlawful because his appeal rights were not exhausted as at 24 April 2012.

The power to detain is contained in para 2 of Schedule 3 to the Immigration Act 1971:

“(2)

Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.

(3)

Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise).”

Therefore, whether or not the deportation order was valid (in my view it was valid: see ground 1 above), the Defendant has power to detain pending deportation. If the deportation order was valid, then the power exists under para 2(3) to detain in consequence of that order. If the deportation order was invalid, then the power exists under para 2(2) to detain in consequence of the notice of intention to deport dated 17 March 2008 (which the Claimant received and appealed against).

The exercise of the statutory power to detain is addressed in Re Hardial Singh [1984] 1 WLR 704, revisited and clarified by Dyson LJ in R (I) v SSHD [2003] INLR 196 at para 46:

“i)

The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

ii)

The deportee may only be detained for a period that is reasonable in all the circumstances;

iii)

If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;

iv)

The Secretary of State should act with the reasonable diligence and expedition to effect removal.”

What amounts to a “reasonable period” has been considered in a number of cases, including R (A) v SSHD [2007] EWCA Civ 804 where Toulson LJ said that:

“45.

… there must be a sufficient prospect of the Home Secretary being able to achieve that purpose to warrant the detention or the continued detention of the individual, having regard to all the circumstances including the risk of absconding …”

He also said, in the same case, that:

“54.

…Where there is a risk of absconding and a refusal to accept voluntary repatriation, those are bound to be very important factors, and likely often to be decisive factors, in determining the reasonableness of a person’s detention, provided that deportation is the genuine purpose of the detention. The risk of absconding is important because it threatens to defeat the purpose for which the deportation order was made.”

It is evident from the Supreme Court’s decision in R (Lumba) v SSHD [2012] 1 AC 245, that there is no rule that detention is unlawful simply because the detainee is pursuing a legal challenge in respect of his removal. Lord Dyson said at para 121:

“If a detained person is pursuing a hopeless legal challenge and that is the only reason why he is not being deported, his detention during the challenge should be given minimal weight in assessing what is a reasonable period of detention in all the circumstances. On the other hand, the fact that a meritorious appeal is being pursued does not mean that the period of detention during the appeal should necessarily be taken into account in its entirety for the benefit of the detained person. … The risks of absconding and reoffending are always of paramount importance, since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place. But it is clearly right that, in determining whether a period of detention has become unreasonable in all the circumstances, much more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he is pursuing a hopeless one.”

At the time of the Claimant’s detention there was no application for permission to appeal outstanding. There was no extant litigation at that stage; and, importantly, there was no requirement to wait until all possible appeal rights had been exhausted before he was detained. Deportation was imminent. Detention was lawful.

Thereafter at no point did the detention become unlawful, applying the above principles. That was for two reasons. First, so far as there were ongoing legal proceedings, the Defendant was entitled to take the view that they were hopeless – as some grounds advanced before me plainly are – or if not hopeless, of doubtful merit. I accept that the wind changed direction a little with the grant of permission on 6 September 2012 on ground 2 (in the context of the First JR); and further on 13 March 2013 with the grant of permission on grounds 1 and 3 (straddling the First and Second JRs). But these were grants of permission, which signalled only that the underlying grounds were considered to be arguable. They did not mean that the Claimant’s legal proceedings instantly became “meritorious”.

In any event, and even if there was possible merit in the Claimant’s legal challenges, the detention remained justified because of the obvious risk that the Claimant would abscond if released. He had every reason to do so, given that his appeal had failed. He had left the UK to avoid deportation in 2009; and he had a track record of dishonesty in the manner of dealing with the UKBA – putting forward false documents to obtain leave in July 2003, applying for residency on the basis of a false marriage in 2008, and slipping out of the UK to avoid being deported in 2009.

The Claimant further suggests that the detention was unlawful because it was predicated on the deportation order which was itself invalid. As to that:

The detention pending deportation was lawful. Ground 2 fails. With it the First JR fails and I dismiss it.

The Claimant contends that Article 27 of Directive 2004/38/EC (the “Directive” (Footnote: ²)) is engaged on the facts of this case because the Claimant is a “family member” within Article 27. The Claimant complains that the FTT applied the wrong approach in weighing the relevance of the Claimant’s previous criminal conviction, given that the Claimant is assessed to be at low risk of re-offending, and given the nature of his previous offence, so that it cannot be said that he poses a present and serious threat. It is argued that there are no authorities of direct relevance, and a reference to the CJEU might be necessary. It is further argued that there has been a failure properly to consider the deterrent effect of the Claimant’s removal to Sierra Leone on the ability of his sister, an EEA national, to exercise her EU law rights.

The Defendant counters that the Claimant is not a “family member” for the purposes either of the Directive or of the domestic implementing provisions (the Immigration (European Economic Area) Regulations 2006, SI 2006/1003, the “2006 Regulations”). The Claimant falls in the category of “other family member” or “OFM”. As such, he has no residency rights in EU law. The Defendant has discretion to issue him, as an OFM, with a residence card, and the Defendant’s refusal to do so is neither irrational nor inconsistent with the 2006 Regulations; the FTT was correct to uphold that refusal. The Claimant did not argue below that his sister would be deterred from exercising her EU rights if he was removed and there is nothing to suggest she would be so deterred.

Thus there are two broad issues which arise under Ground 3: first, to establish the Claimant’s legal status under the Directive; and secondly to determine, once his legal status is established, if there has been an error in the approach used or the outcome reached in his case.

Recital (6) to the Directive records:

“In order to maintain the unity of the family in a broader sense and without prejudice to the prohibition of discrimination on grounds of nationality, the situation of those persons who are not included in the definition of family members under this Directive, and who therefore do not enjoy an automatic right of entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.”

Article 2 of the Directive provides:

“Article 2

Definitions

For the purposes of this Directive:

…

2)

"Family member" means:

(a)

the spouse;

(b)

the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;

(c)

the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);

(d)

the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b).”

Article 3 of the Directive provides:

“Article 3

Beneficiaries

1.

This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

2.

Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

(a)

any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;

(b)

the partner with whom the Union citizen has a durable relationship, duly attested.

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.”

Accepting that the Claimant’s sister is a Union citizen, it is clear that the Claimant, as her brother, is not within the definition of “family member” set out at Article 2(2). On the footing that the Claimant is a member of his sister’s household, the Claimant does come within the definition of “other family member” at Art 3.2(a) of the Directive.

Article 27 appears in Chapter VI of the Directive under the heading “Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health”. It provides, so far as relevant:

“General principles

1.

Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.

2.

Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned.

Previous criminal convictions shall not in themselves constitute grounds for taking such measures.

The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.”

The Claimant argues that although he is defined as an OFM, he nonetheless comes within the reference to “family members” in Art 27.1.

That point was considered by the Upper Tribunal in Rose v Secretary of State for the Home Department [2011] UKUT 0276 (IAC). In that case the appellant was a Jamaican national in a durable relationship with an EEA national. He resisted deportation as a foreign criminal arguing that this would breach his EU rights, in particular Art 27 of the Citizens’ Directive. The question there, as here, was whether the appellant was a ‘family member’ for Art 27.1 purposes, it being clear that he was not a family member for Art 2.2 purposes.

The UT in Rose thought that it was arguable that the Art 27.1 safeguard against expulsion was intended to cover family members of all kinds including OFMs. This was on the basis that the Directive itself mixes its use of the term “family members” so that, for example, Art 8.5 and Art 10.2 impose requirements relating to the documents which must be produced by “family members” and then refer in terms to cases falling within Arts 3.2(a) and (b) (see para 16). Having recognised that argument, however, the UT rejected it. The UT concluded that the appellant was not a family member for Art 27 purposes:

“[16] The alternative view, which is the one we take, is that the definition given of family member in Article 2.2 (which does not extend to OFMs) is intended to be Directive-wide since the definition set out in Article 2(2) is preceded by the opening words “For the purposes of this Directive”. Recital 6 likewise refers to OFMs as “those persons who are not included in the definition of family members under the Directive”.”

I agree with that reasoning. I also note that Arts 8.5 and 10.2 are administrative provisions concerning the documentation required to get a registration certificate or residence card, whereas Art 27 is very different in nature: it safeguards EU citizens and family members from unwarranted interference with their EU rights of residency (noting of course that the Claimant, as an OFM, has no such rights – another reason why Art 27 cannot apply to him). Further, Arts 8 and 10 are expressly extended to cases within Arts 3.2(a) and (b) (by Art 8.5 and Art 10.2); Art 27 includes no equivalent extension.

I conclude that Art 27 does not extend to OFMs. That is not to say that the Claimant has no rights at all under the Directive. As an OFM, he does benefit from such “rights” as are set out at Art 3.2 of the Directive. These are limited to the requirements, (i) that there be a system of national law to facilitate entry and residence for OFMs and durable partners; and (ii) that the host Member State should undertake an extensive examination of the personal circumstances of the OFM/durable partner, and justify any denial of entry or residence to such a person. Those requirements are reflected in the 2006 Regulations.

It is not necessary to refer this case to the CJEU and I decline to do so.

The 2006 Regulations are applicable to the Claimant. Within those regulations, the same distinction exists between a family member (reg 7) and an “extended family member” (reg 8) as is set out in the Directive. An extended family member who is issued with a residence card becomes a “family member”: reg 7(3).

The Defendant must issue a residence card to a person who is a family member of an EEA national (reg 17(1)). But there is no equivalent obligation so far as extended family members are concerned. The Secretary of State has a discretion under Reg 17(4) in relation to extended family members:

“The Secretary of State may issue a residence card to an extended family member not falling within regulation 7(3) who is not an EEA national on application if –

(a)

The relevant EEA national in relation to the extended family member is a qualified person or an EEA national with a permanent right of residence under regulation 15; and

(b)

In all the circumstances it appears to the Secretary of State appropriate to issue the residence card.”

Regulation 17(5) requires the Secretary of State to undertake an extensive examination of the personal circumstances of the applicant and if she refuses the application to give reasons justifying the refusal unless this is contrary to the interests of national security. Regs 17(4) and (5) appear to fulfil the requirements of Art 3.2 of the Directive.

Regulation 17 is subject to regulations 20(1) and (1A): see reg 17(8). Regulation 20 provides, so far as material:

“(1)

The Secretary of State may refuse to issue, revoke or refuse to renew a registration certificate, a residence card, a document certifying permanent residence or a permanent residence card if the refusal or revocation is justified on grounds of public policy, public security or public health or on grounds of abuse of rights in accordance with regulation 21B(2).

…

(6)

Any action taken under this regulation on grounds of public policy, public security or public health shall be in accordance with regulation 21.”

Regulation 21 provides as follows:

“(1)

In this regulation a “relevant decision” means an EEA decision taken on the grounds of public policy, public security or public health.

(2)

A relevant decision may not be taken to serve economic ends.

(3)

A relevant decision may not be taken in respect of a person with a permanent right of residence under regulation 15 except on serious grounds of public policy or public security.

(4)

A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who—

(a)

has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision; or

(b)

is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989.

(5)

Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles—

(a)

the decision must comply with the principle of proportionality;

(b)

the decision must be based exclusively on the personal conduct of the person concerned;

(c)

the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;

(d)

matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;

(e)

a person's previous criminal convictions do not in themselves justify the decision.

(6)

Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the person's length of residence in the United Kingdom, the person's social and cultural integration into the United Kingdom and the extent of the person's links with his country of origin.”

It can be seen that Regulation 21 reflects the factors listed at Art 27 of the Directive. But, for reasons set out above, Art 27 does not extend to OFMs. The protection afforded to OFMs (or extended family members as they are called under the 2006 Regulations) under Regulation 21 thus derives from domestic, not EU law.

The range of persons who may be subject to a decision under Regulation 20, read with Regulation 21, is broad. It is clear that the protection afforded to those with EU rights of residency is greater than those who do not possess such rights (see Regulation 21(3) and (4)). The Defendant suggests that the application of Regulation 21 in any given case is thus to be judged – and may vary – according to the immigration status of the individual in question; and that the decision in the case of someone who does not possess EU rights of residency is not to be reviewed with the same intensity as might be appropriate in a case involving someone with such rights. Whilst accepting that proposition in general, it does not in my view assist in the resolution of the Claimant’s specific challenge to the FTT’s determination in this case.

The particular challenge in this case relates to the reasons given by the FTT for upholding the Secretary of State’s refusal of a residence card. The FTT approached the issue by reminding itself that the Defendant had discretion under Regulation 17(4), and that the question was whether it was “appropriate” to grant the Claimant a residence permit. Nothing turns on the fact that Regulations 17(5), 17(8), 20 and 21 were not referred to by the FTT in terms; the issue is whether the decision reached by the FTT is consistent with those provisions in substance.

The FTT concluded that the refusal was proper and lawful for the following reasons, set out at para 22 of its Determination:

“[22] It seems to me that the validity of the deportation order in turn depends upon whether the appellant is entitled to a residence permit as the extended family member of a person returning to the United Kingdom having exercised Treaty Rights in an EEA state. The substantive question in this appeal therefore is whether it would be appropriate to grant the appellant a residence permit in terms of section 17(4) of the EEA Regulations [2006]. Paragraph 17(4) confers a discretion on the decision maker. In my view it would not be appropriate in all the circumstances to grant the appellant a residence permit. For reasons that I now set out below I find that the respondent’s refusal to grant the appellant a residence permit is a proper and lawful exercise of his discretion.

(i)

In considering whether a discretion should be exercised in the appellant’s favour in granting him a residence permit I propose to disregard the fact that a deportation order was signed against the appellant in January 2009. I consider however that I am entitled to take into account that he had been convicted of a serious criminal offence. The appellant forged medical evidence to support his application for leave to remain. The gravity of this offence is reflected in the length of sentence that he received.

(ii)

The appellant states that he is contrite but it is not without significance that not very long after his release from prison he made an application for leave to remain as the spouse of an EEA national exercising Treaty Rights in the UK. That application was rejected on the grounds that his spouse was already married. I find as a fact the evidence established on a balance of probabilities that the application the appellant made to remain as a spouse was with the full knowledge that his spouse was already married. It was a further attempt at deception. In his evidence at this hearing the appellant has not made any attempt to set out the background to his relationship with the EEA national that he married in 2008. It is apparent from the evidence that the appellant did not at any stage inform the respondent that the person he claimed to have married was already married. The appellant’s application was rejected on the basis of the respondent’s enquiries that revealed this to be a sham marriage. The appellant has not explained what motive the EEA national would have had for not disclosing to him that she was already married. One cannot think of a reason why she should seek to deceive him if this was a bona fide relationship as the appellant claims. The appellant’s marriage to an EEA national and subsequent application as her spouse must also be viewed against the context of a further attempt on his part to gain leave to remain after his use of deception in a previous application led to his criminal conviction and sentence.

(iii)

I have considered the contents of the psychiatric reports. I accept without hesitation that this appellant poses a low risk of re-offending. I also accept that the motive for his offence of deception was in order to try to gain leave to remain in the UK.

(iv)

The use of deception has the potential to undermine the efforts by member states to maintain effective systems of immigration control.

(v)

I accept that appellant has two sisters in the United Kingdom. I accept that he has a close relationship with his sisters and that the bonds between them are stronger because of his experiences in Sierra Leone where both his parents were killed. I also accept that he has a strong relationship with his nephews and that he plays a supportive role in their upbringing.

(vi)

I accept that the appellant has been financially dependent on his sister Jennifer. I take into account the tragic circumstances concerning the death of his parents in Sierra Leone. I do not however consider that his dependence on his sisters in the United Kingdom and in particular Jennifer, goes beyond normal emotional ties. In my view it has been a dependency based mainly on his need financial support because of appellant immigration status.”

(vii)

The appellant is in good health and has acquired a good standard of education in the United Kingdom. He did attempt to enter into a marriage in 2008. The evidence suggests that he is capable and indeed intends to establish an independent family unit. His dependence on his sister Jennifer it would seem has been forced upon him because of his immigration status and his consequent inability to earn an independent living.

(viii)

I accept that he has spent more than twelve years in the United Kingdom. He has in that time become accustomed to the life in the United Kingdom and has integrated to the extent that he was able to enter medical school in 2005. I take into account the considerable amount of voluntary work that he engages in and that he has formed strong friendships and social relationships in the UK.

(ix)

I accept that he would have difficulty in locating close family members in Sierra Leone. He did however spend his formative years in Sierra Leone as he arrived in the United Kingdom at the age of fifteen. He has attained a good standard of education. He has attained above average grates at A-level in very useful science subjects. The situation in Sierra Leone has become relatively normal and he would not be at risk of serious harm. He would be able to use the skills and education he has acquired in the United Kingdom to good effect. I accept that he has a close bond with his sisters and in particular with his eldest sister Jennifer who has been responsible for his financial maintenance.

(x)

He is close to his nephews and nieces. The appellant however would be able to receive his United Kingdom relatives in Sierra Leone as visitors. He would be able to continue contact with them through modern means of communication. His nephews would be able to contact him and visit him. I do not consider that his removal would in any way jeopardise the best interests of his young nephews and nieces. They have both parents living with them in the UK and that would continue to be the case after the appellant’s removal. It is true that the appellant will suffer a measure of inconvenience and short term hardship in returning to a country that he left when he was fifteen years of age about twelve years ago. He has however the potential advantage of being able to continue to rely in the short term on his sisters in the UK for financial support. He also has the advantage of having gained a good standard of education that will give him the potential to earn an income upon his return to Sierra Leone or indeed to continue his medical studies at an institution in Sierra Leone.”

The Claimant says that this passage discloses two errors by the FTT. First, it is said that the FTT placed undue weight on the fact of the Claimant’s past conviction, and in that context failed to have sufficient regard to the low risk of future offending, which (so it was argued) was key to determining whether there was a genuine, present and sufficiently serious threat. Secondly, it is said that the FTT had regard to matters of general prevention which were isolated from the case.

As to the Claimant’s past conviction: the FTT recorded that the Claimant had committed a serious criminal offence in forging medical evidence to support his application for leave to remain in 2003 (para 22(i)). The FTT was entitled to place some reliance on that conviction: that much is envisaged in the Regulations. The FTT then referred to the Claimant’s further attempt at deception by marrying a person, knowing her to be married already; it considered that 2008 deception in the context of the previous conviction (para 22(ii)). The FTT then went on to consider various other various factors. It is clear that the FTT did not treat the Claimant’s conviction as the sole reason for upholding the Defendant’s refusal.

In weighing the fact of conviction, the FTT reminded itself (and accepted) that the Claimant was at low risk of reoffending (para 22(iii)). But the factors already recorded in paras 22(i) and 22(ii) were sufficient to amount to a coherent and rational basis for concluding that there was a genuine, present and serious threat affecting a fundamental interest of society. The threat was of dishonest conduct in dealings with the immigration authorities. The fundamental interest of society was the maintenance of an effective system of immigration control.

This was not to have regard to matters of general prevention, isolated from the case. Rather, this was to have regard to the particular features of the Claimant’s own past: he has a track record of dishonesty (including criminal dishonesty) in his dealings with the immigration authorities. Therefore, the conclusion at para 22(iv) was not a conclusion based on issues of general prevention, but a conclusion drawn from the facts of this case, which reflected the particular threat posed by this Claimant’s continued presence in the UK.

The principles listed at Regulation 21 comfortably extend to consideration of the various factors listed by the FTT at para 22. I do not consider that there was any error of law in the FTT’s reasoning.

I was shown a number of authorities: R v Bouchereau [1978] QB 732, R (ex p Marchon) [1993] 2 CMLR 132, Wolfgang Schmelz v IAT [2004] Imm AR 87, MG and VC (EEA Regulations 2006; “conducive” deportation) Ireland [2006] UKAIT 00053, Case C-340/97 Nazli v Stadt Numberg [2000] ECR I-957, Case E-15/12 Jan Anfinn Wahl v Icelandic State, Case C-50/06 Commission v Netherlands, and Krummins v SSHD DA/00965/2012. In the main these discuss the relevance of past offending as a basis for expulsion; one case illustrated non-criminal conduct as a basis for expulsion (Wahl). But apart from showing that there are a wide variety of circumstances which may fall for consideration in the context of a member state’s refusal on public policy grounds of an individual’s application for residency, I did not find these authorities particularly helpful, because the facts of each were very different from this case. Specifically, most involved the removal of persons with EU rights of residency (or ETSA equivalent). In my view, this case is resolved by testing the reasons given by the FTT against the principles set out in the 2006 Regulations, and authorities involving different facts do not assist in that exercise.

Finally, the Claimant argued that the FTT erred in failing to consider the effect on the Claimant’s sister and her immediate family, all EEA citizens, of the refusal of her brother’s application. This argument was not raised in front of the FTT and as a result it is not surprising that the FTT did not address it in terms. It is too late to raise it now. But in any event, the FTT did deal in its reasons with the impact of separation on the Claimant and his sister’s family. The FTT concluded that the family staying in the UK would be able to visit the Claimant in Sierra Leone and keep up with him using modern methods of communication (para 22(x)), and that there would be no undue or disproportionate interference with the Claimant’s Art 8 rights if the Claimant went back to Sierra Leone. The predicate of that conclusion is that the Claimant’s sister and her children would continue their life in the UK - undeterred. There is no evidence at all that the Claimant’s sister would do anything other than stay in the UK with her children.

The suggestion that the FTT had misapplied or failed to apply the 2006 Regulations is therefore without merit.

This ground of challenge fails.

This is a Cart challenge to the refusal of the Upper Tribunal to grant permission to appeal from the First Tier Tribunal (see R (Cart) v Upper Tribunal (Public Law Project and another intervening) [2011] UKSC 28; [2012] 1 AC 663). There is no dispute that as such, it is in principle subject to the higher threshold applying to “second appeals”, namely that in addition to the decision under challenge disclosing an arguable error of law (the ordinary JR standard), the claim must also raise an important point of principle or practice or there must be some other compelling reason to hear it (the second appeals standard).

What divides the parties is whether that higher threshold applies to each and every ground advanced (as the Defendant argues), or whether, given that permission has already been granted by Buxton LJ on ground 3 applying the higher threshold, any other ground sought to be advanced within the same JR need only satisfy the ordinary JR standard of arguability (as the Claimant argues).

The Claimant relies on the provisions of CPR 54 itself, including 54.7A, although that provision was implemented after the issue of the Second JR. He suggests that the word “claim” as used in the CPR means the whole claim, and is not limited to individual grounds. This is manifest from, for example, CPR 54.1(2) which refers to the “claim for judicial review”, and CPR 54.7A(7) which again refers to “the claim”. He also relies on a passage from the judgment of Wilkie J in R (Kuteh) v Upper Tribunal Administrative Appeals Chamber [2011] EWHC 2061 (Admin):

“There are two other grounds on which Mr O’Brien seeks permission. I have come to no conclusion as to whether either of them is arguable, because I have concluded that the main ground upon which Mr O’Brien relies is arguable. Those other grounds may be put before the court hearing the application for judicial review, but I am specifically not ruling that either of them is in itself arguable, but it is sufficient for Mr O’Brien’s purposes that I have found that his first ground is arguable.”

The answer to this, the Defendant submits, is that the terms “claim” and “grounds” are used interchangeably within CPR 54, and in each instance must be understood according to the context of the particular provision in which they appear. What is quite clear, and reflects standard practice, is that the Administrative Court can and often does give limited permission: CPR 54.4.5 and CPR 54.12(b)(ii) (the latter entitling the Court to give permission “on certain grounds only”). The Administrative Court’s approach is to consider each ground separately to determine whether it reaches the required threshold for permission. Cart challenges should be subject to the same general approach of looking at each ground individually, applying the higher threshold to each ground. There is nothing in CPR 54.7A(7), which itself reflects the Supreme Court’s decision in Cart, to suggest that if permission has already been granted on one ground, other grounds advanced need only meet the first limb of the test (ie arguability), and not the second limb also (ie second appeal test); if the rule was intended to operate that way, it would surely have said so. Kuteh is a different case altogether, where the judge simply left the issue of permission on other grounds to the judge hearing the substantive JR; it contributes nothing to the debate as to the threshold to be applied. Further, the Cart approach is modelled on the rules for second appeals to the Court of Appeal (CPR 52.13), and the Court of Appeal routinely gives limited permission on the basis that the other grounds do not meet the criteria for a second appeal.

The Defendant also relies on the policy which underpins the Supreme Court’s decision in Cart (now reflected in the CPR), which is to restrict the possibility of bringing judicial review against the Upper Tribunal’s refusal of permission to those few instances where “there is an element of general interest, which justifies the use of the court’s scarce resources” (Cart, Lord Dyson, JSC at para 130; see also Uphill v BRB (Residuary) Ltd [2005] 1 WLR 2070, para 17). If the granting of permission on one such general interest ground had the effect of opening the gates to all arguable points, whether or not they had an element of general interest attached to them, or raised some other compelling reason why they should be heard, the restrictive approach indicated by the Supreme Court would be substantially undermined.

I accept the Defendant’s submissions on this issue. To do so makes sense of the rules and the case law. The higher “second appeals” threshold must apply to each ground of a Cart challenge, considered separately.

The complaint is that the FTT’s conclusions on two key matters were unfair and unsafe. The first matter relates to the FTT’s conclusion that the Claimant had knowingly attempted to deceive the Defendant by entering into a sham marriage (the “sham marriage” issue); the second relates to the conclusion that the Claimant had deliberately moved to Ireland to avoid the deportation proceedings then afoot, and to enable him to return as an extended family member of a UK national who had exercised treaty rights in Ireland (the “move to Ireland” issue). The Claimant argues that these issues were not raised by the Defendant in her refusal decisions or at the hearing and that in consequence the Claimant did not address these matters by way of adducing further evidence or making submissions.

Sham marriage issue

The sham marriage issue arises out of the Immigration Judge’s conclusions at para 22(ii) of the Determination:

“I find as a fact the evidence established on a balance of probabilities that the application the appellant made to remain as a spouse was with the full knowledge that his spouse was already married. It was a further attempt at deception….”

This conclusion was reached in the context of the Defendant’s refusal decisions. The UKBA’s letter dated 9 December 2008 refused the Claimant’s application for a residence card based on his asserted marriage to a French national who was exercising Treaty rights in the UK. That letter stated:

“... in support of this application you submitted a marriage certificate dated 5/7/08. On your marriage certificate, Ms Usunlele stated that she was “single”, however the Home Office is aware that this is not true and that Ms Usunlele was married in 2003. Furthermore, she has provided us with no evidence that the marriage has ended.

Therefore, as Ms Usunlele is already married, your claim to be legally married to her is invalid. You have provided no evidence to support your claim that you are a family member of an EEA national and your applications falls for refusal. ...”

UKBA wrote a further reasons for refusal letter to the Claimant on 11 January 2012 (wrongly dated 2011). That letter set out some of the background and stated:

“The purpose of this letter is to clarify some of the issues recently raised at appeal and which is due to be re-heard on 16 January 2012”. (Footnote: ³)

That letter went on to state that the UKBA had a discretion whether or not to issue a Residence Card and that for reasons set out in that letter, discretion would not be exercised in the Claimant’s favour. One reason given was that:

“You have made two applications for residence cards; the first application was refused on the basis that the marriage was not genuine and which would appear to be a sham marriage for the purpose of circumventing immigration control…”

Accordingly, the Defendant’s decision letters did put in issue the authenticity of the Claimant’s marriage, and did in terms suggest that marriage was a sham, a dishonest attempt to circumvent immigration control.

It appears that the Appellant did not challenge that assertion by way of submission or evidence at the appeal hearing on 7 March 2012. This was despite the Appellant providing witness statements and oral evidence at that hearing, the content of which is summarised by the FTT at para 13 of the Determination, para 13(iv) in particular:

“After his release he returned to live with his sister Jennifer as her dependent. In August 2008 he applied to the respondent for leave to remain as the spouse of an EEA national exercising Treaty rights in the UK. That application was declined on the grounds that his spouse was already married to someone else at the time of his application. …”

The FTT discussed this evidence at para 22(ii), after it had reached the finding of fact which is challenged (and which I have already set out above):

“… In his evidence at this hearing the appellant has not made any attempt to set out the background to his relationship with EEA national that he married in 2008. It is apparent from the evidence that the appellant did not at any stage inform the respondent that the person he claimed to have married was already married. The appellant’s application was rejected on the basis of the respondent’s enquiries that revealed this to be a sham marriage. The appellant has not explained what motive the EEA national would have had for not disclosing to him that she was already married. One cannot think of a reason why she should seek to deceive him if this was a bone fide relationship as the appellant claims. The appellant’s marriage to an EEA national and subsequent application as her spouse must also be viewed in the context of a further attempt on his part to gain leave to remain after his use of deception in a previous application led to his criminal conviction and sentence.”

The FTT was entitled to draw this adverse inference from the Claimant’s silence on the point: the Claimant was on notice that the authenticity of his marriage was a factor relied on by the UKBA in refusing to exercise discretion to grant him a residence card; this was the appeal brought by the Claimant against that refusal; it was for the Claimant to raise any challenge he wished to going to the merits of the UKBA’s decision to refuse him a residency card. If he did not challenge one or more of the reasons given by the UKBA for its decision, it was open to the FTT to conclude that the facts relied on by the UKBA were sound, and to draw any reasonable inference from those facts.

The Claimant goes on to contend that if he had been put on notice of the sham marriage issue, he would have put further evidence before the FTT to deal with the point. That further submission must fail in consequence of my conclusion that the Claimant was on notice of the issue and failed, for whatever reason, to take issue with it or to put evidence before the FTT. (I should record that I was handed up a witness statement from the Claimant addressing aspects of the sham marriage issue during the course of the hearing. I was not asked to rule on admissibility and I did not do so.)

The Claimant also says that he would have relied on Papajorgji (EEA spouse – marriage of convenience) Greece [2012] UKUT 38 IAC. But that was a case where the issue in the appeal, raised explicitly and clearly by the appellant, was a challenge to the Defendant’s decision that the appellant’s marriage was one of convenience: see the description of the appellant’s grounds of appeal at para 4. That is in marked contrast with this case where the Claimant never (until after the FTT) challenged the Defendant’s view that the marriage was not genuine. Further, Papajorgji confirms that the burden is on the Claimant to establish that the marriage is genuine, in circumstances where there are factors supporting suspicions for believing that the marriage is one of convenience (para 14). There are plainly such factors here: the Claimant’s wife was already married to someone else; and the burden was thus on the Claimant to explain the position. Papajorgji does not help the Claimant. Citing it to the FTT would not have made any difference.

There is no merit in the sham marriage issue.

Move to Ireland issue

The move to Ireland issue arises out of the FTT’s conclusions at para 18 of the Determination:

“... In my judgment, it admits of no doubt that when the appellant left the United Kingdom in January 2009 to reside with his sister who had moved to Ireland, it was for the immediate purpose of avoiding the deportation proceedings that had been instituted against him and for the secondary purpose of enabling him to return to the United Kingdom as the extended family member of an United Kingdom national who had exercised Treaty rights in Ireland.”

The Claimant argued, first, that he was not on notice of this point. I do not accept that: the UKBA’s letter dated 11 January 2012 had asserted that the Claimant had acted dishonestly in travelling to Ireland, in order to circumvent immigration control. This was sufficient to put the Claimant on notice that the reasons for his move to Ireland in January 2009 were very much in issue in the appeal. Secondly, the Claimant asserted that because he was not on notice of this point, he could not cite the relevant authority of C-109/01 Akrich [2003] EUECJ, in support of the proposition that a person’s motives are not relevant to whether or not that person has a right of residency in EU law. But it is plain that the FTT had this general proposition in mind, and applied it: the FTT accepted the Claimant was an extended family member of an EEA national who had exercised Treaty rights in Ireland, and so was at least eligible to apply for a residence permit when he moved back to the United Kingdom (para 16-17); the FTT cited the move to Ireland only as a factor relevant to the validity of the Deportation Order (para 18), and not as one of its reasons for upholding the refusal of a residency card (para 22).

There is no merit in the move to Ireland issue.

Although I have recorded the arguments and my conclusions on the sham marriage and move to Ireland issues, it is clear that neither contains any element which could be characterised as an important point of practice or procedure. Nor does either contain any element which provides a “compelling reason” for a second appeal. There has been no “wholly exceptional collapse of fair procedure” (Cart, para 131) and the FTT was not “fundamentally unfair” as the Claimant asserts. I therefore refuse permission for judicial review on this ground.

A final point: the Upper Tribunal refused permission in part based on its understanding that no complaint of unfairness was made in the initial grounds of appeal which were drafted by Counsel who had represented the Claimant at the hearing before the FTT and not by Mr Jafferji who drafted the grounds to the Upper Tribunal and appeared before me (see para 3 of the Upper Tribunal’s decision dated 9 May 2012). Mr Jafferji points out and I accept that the grounds of appeal to the FTT did allude, in slightly different terms, to the sham marriage issue and the move to Ireland issue at para(v) [bis]. But given my conclusions, the timing of the complaint of unfairness is not important and I have had no regard to it.

Ground 4 fails and with it the second JR fails and I dismiss it.

By this ground the Claimant seeks to challenge the Defendant’s decision dated 20 August 2012 refusing to revoke the Deportation Order. This ground of challenge stands or falls with ground 1: if the Deportation Order is valid, then this challenge falls away.

I have already found that the Deportation Order is valid, see issue 1 above. In consequence, ground 5 must fail.

In my view there is no merit in this ground; it is not arguable. Accordingly I refuse permission.

The Defendant’s letter of 20 August 2012 treated the matters raised in the Second JR as an application to revoke the Deportation Order, which in turn is an immigration decision under s 82(2)(k) of the Nationality, Immigration and Asylum Act 2002 (the “2002 Act”). A right of appeal is given against immigration decisions, but the appeal can only be brought out of country, unless one of a number of circumstances found in s 92 of the 2002 Act apply. One such circumstance is that the person has made a human rights claim while in the UK, see s 92(4)(a) of the 2002 Act.

However, s 94(2) entitles the Defendant to certify an asylum or human rights claim as clearly unfounded. The effect of such a certification is to remove any in-country right of appeal. The person will retain a right of appeal which can be exercised from outside the UK.

The Claimant was treated as having made a human rights claim while in the UK, but his claim was refused and certified as clearly unfounded. That being so, he has no right of appeal within the UK.

The Claimant challenges the certification on two grounds, first that his human rights claim has intrinsic merit; secondly that the Defendant’s approach represents an improper application of the immigration rules and case law.

The Defendant’s decision dated 20 August 2012 was in response to the Claimant’s application for the Second JR, which the Defendant had treated as whether the Deportation Order would be contrary to the ECHR or the Refugee Convention (para 11). The Claimant’s Art 8 claim was considered in detail at paras 26-42. The Defendant placed reliance on conclusions drawn by the FTT on some of the matters which fell for consideration in that context (para 40(b)).

There is no error of law in the Defendant’s approach. The Defendant was satisfied, with good reason, that the Claimant’s human rights claim would not succeed on any legitimate view, and that there was nothing exceptional about the Claimant’s case. The Defendant considered these points independently but was fortified in her conclusions by the fact that the FTT had decided just a few months previously that removal would not breach Art 8. The Defendant’s analysis satisfied the test in ZL & VK v SSHD [2003] 1 WLR 1230 and was consistent with the principles set out in MF Nigeria [2013] EWCA Civ 1192.

I refuse permission, the ground is unarguable. Ground 6 fails.

The Claimant argues that he has also made an EEA claim and is thus entitled to an in-country right of appeal pursuant to s 92(2)(4)(b) of the 2002 Act. He argues that the decision of 20 August 2012 is defective in failing to notify him of his in-country appeal rights.

The letter of 20 August 2012 told the Claimant that he had a right to appeal in the following terms:

“Your appeal may be brought after you have left the United Kingdom unless you have made a well-founded human rights claim while in the United Kingdom, or if you are a European Economic Area national or the family member of such a national and made a claim that the decision breaches your rights under the Community Treaties in respect to entry or residence in the United Kingdom. Your human rights claim has been certified under s 94 of the Nationality, Immigration and Asylum Act 2002 as clearly unfounded, your appeal may be brought after you have left the United Kingdom.”

The Claimant is not an EEA national and nor does he have a valid EEA claim for residency. That was what the FTT decided. The UT did not think there was any error of law in that conclusion. I agree: see my conclusion on Ground 3 above. He does not therefore come within s 92(4)(b) of the 2002 Act which gives an in-country right of appeal to a person who is an EEA national or a member of the family of an EEA national.

In any event, he has already had and exercised a right of appeal against the refusal of his EEA claim: this was the issue before the FTT. That appeal has been resolved against him and there is no further right of appeal.

Given that his claim has been validly certified, he does not have an in-country right of appeal on the basis of his human rights claim either.

There is no in-country right of appeal under the statute. The Defendant was correct so to state in the decision letter. This ground is unarguable and I refuse permission. (I note that HHJ Gosnell also considered the issue of delay in issuing the Third JR. I do not need to consider that issue given my view on the merits of each of the three grounds advanced as part of the Third JR.)

Each of the three claims for JR fails. Each is dismissed.